We Asked These Lawyers to Explain the Military’s Inconsistent, Outdated Anti-HIV Policies
Late last month we reported on a lawsuit against the U.S. Department of Defense (DoD) for its policies discriminating against military members who have HIV. We spoke to one of the organizations legally representing the client in that case — OutServe-Servicemembers Legal Defense Network (SLDN), the advocacy group for LGBTQ military — to help us understand more about American military HIV policies and what will happen next with their lawsuits.
The initial case we reported on involved Nick Harrison, an openly gay, HIV-positive veteran of the D.C. Army National Guard, who sued the DoD over its policy informally nicknamed “Deploy or Get Out.” Basically, U.S. military HIV policies state that positive service members can’t be deployed to military posts outside of America for more than a year. Because they are unable to be deployed as needed, HIV-positive military members can be immediately discharged from the military, prohibited from being appointed as officers — even prevented from enlisting altogether — because they’re not allowed to serve to their fullest capacity.
But the Harrison case is just one of two lawsuits filed by OutServe-SLDN and the LGBTQ legal advocacy group Lambda Legal. The second lawsuit, Voe v. Mattis, involves an anonymous, HIV-positive Air Force Academy graduate who was denied a commission by the Air Force even though medical personnel said he was completely fit for one.
To be clear, Matthew Thorn, President and CEO of OutServe-SLDN, clarifies there isn’t a military-wide HIV ban in effect.
In fact, U.S. military HIV policies differ depending on which branch of the military you’re in, the type of deployment you’re given, whether you’re in active duty or the reserves, your military occupational specialty (MOS), your current assignment and even who your commanding officer is. All of this creates confusion and insecurity about how HIV-positive members are treated.
“There’s no universal application for how the [Department of Defense] approaches service members who are living with HIV,” says Thorn. “It’s a very broken system.”
Although the military turns away HIV-positive recruits, Thorn claims there are approximately 2,000 HIV-positive people currently serving in the military, according to rough estimates from the Department of Defense itself. A Medical Surveillance Monthly Report published by the Defense Health Agency in 2015 says rates of HIV have been increasing in the military ever since 2011, with the highest prevalence among men in the Army and Navy.
In the last two years alone, abut 50 or so HIV-positive service members have reached out to Outserve-SLDN to discuss their treatment under various discriminatory military HIV policies. Thorn suspects there are more that haven’t reached out because they’re afraid, don’t know about his organization or are unaware of their legal rights.
Thus, it’s unclear how many people have been discharged under current military HIV policies, also because HIV-related discharges are often attributed to other factors, like not following orders or not being available for deployment.
“There are [HIV-positive] service members who are currently serving, and some have really great commanders that are very supportive of them,” Thorn says. “But we’ve had service members that have experienced discrimination and so forth from different command individuals attempting to try to push them out because they don’t have an understanding of what the policy actually is. … We have members that have been targeted for discharge and discrimination that we’ve represented in the military court.”
Outserve-SLDN Legal Director Peter Perkowski explains service members are tested every two years, or before being deployed to a foreign post. If a person tests positive for HIV, their records are kept confidential from everyone except their commander, who is tasked with providing certain orders. You’re not supposed to be separated from others as a result of testing positive, but Perkowski says it definitely happens.
Even when the orders don’t call for discharges or deployment restrictions, the military’s HIV policies seem stuck in 1986, the year the military began testing for the disease. Some HIV-positive service members are given a “Safe Sex Order” prohibiting any condomless sexual contact, even though PrEP medications can prevent the transmission of HIV.
Similar to other HIV criminalization laws in the United States, HIV-positive service members can be charged with assault and battery or rape just for having consensual condomless sex, even if their sexual partners are fully aware of their HIV status.
The Air Force and Army tell service members not to share toothbrushes and razors with HIV-positive people, even though you can’t transmit HIV that way. The Navy and Marines tell HIV-positive women not to get pregnant, even though modern medicine prevents mother-child HIV transmission.
Perkowski says, “[These U.S. military HIV policies have] been around for 30 years. … They all grew out of the fear of transmission of HIV from the most mundane of circumstances, but also there’s this feeling of, ‘Oh, battlefield! Blood’s getting all over the place.’ That’s just not how we understand the science of HIV now. Experts will say that in a carnage situation, an undetectable person is not going to spread HIV. Basically you’d have to be donating blood in order to spread HIV.”
And because these policies fall under piecemeal guidelines that differ through the military branches, fixing the issue doesn’t mean targeting a single law but revising a wide swath of policies badly in need of updating.
Perkowski adds that Congress is currently awaiting a report that was expected on March 1 from the Secretary of Defense outlining the last time military HIV policies were reviewed in accordance with modern medical findings. He hopes that overdue report will surface in the coming weeks.
In the meantime, the government has 60 days to respond to these lawsuits, which were filed in the final days of May 2018. The government’s response will determine the next steps in the legal process.